Page:Federal Reporter, 1st Series, Volume 7.djvu/880

 868 FSOEBAIt BBFQI^TBB. �in the summer of 1871. It was immediately appreciated by the public. In the urst season 20,000 were made; in the second, 40,000 ; in the third, over 80,000. Since that they have been sold in large and increasing numbers, and have been constantly growing in favor with the public, This re- suit, in connection with all the differences, before adverted to, between the Heath cuspidor and prior structures, leads to the conclusion that the invention claimed in the Heath patent is a patentable invention, and that the patent is valid. The case falls "within the principles laid down in- Smith v. Goodyear Dental Vulcanite Cp. 93 D. S. 496, and in Hicks v. Kelsey, 18 Wall, 670. �It is urged that, as tha decision in the New Jersey case was one on final hearing, this court ought, on a motion for a preliminary injunction, to follow it, from comity, until it is overruled by the supreme court. But, in addition to the suggestions before made in regard to the New Jersey suit, it appears that a large number of suits have been brought on the Heath patent, and that in none of them but the New Jersey suit bas there been a decision against the validity of the patent. In some of these suits the defendants have sub- mitted to injunctions, after investigating the subject. In two suits at law the plaintiff recovered against such defences as were set up. In several suits in equity there have been in- junctions and decrees for the plaintiff. This court, in Inger- sollv. Benham, 14 Blatchf. 362, decided that the Topham pat- ent did not show the combination covered by the Heath pat- ent. The Manhattan Brass Company took a license under the patent for a royalty. Several firms started to manu- facture the cuspidors, but, on being notified that they would infringe the patent, they abandoned the manufacture. Some of these firms had licenses under Topham's re-issued patent. No one is now infringing the patent by manufacturing the Heath cuspidor, except the Tarners and Jewett & Sons. The Meriden Britannia Company was enjoined and then took a license. Ail these considerations make a case in which it is proper to grant a preliminary injunction. �In a direct suit brought by the owner of the Heath patent. ��� �